UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4557
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMIE M. HARGROVE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00249-F-1)
Submitted: April 26, 2013 Decided: May 2, 2013
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamie M. Hargrove appeals from his convictions and
210-month sentence imposed pursuant to his guilty plea to
selling a firearm and ammunition to a convicted felon and
possession of a firearm and ammunition by a convicted felon. On
appeal, Hargrove challenges the factual basis for his plea, the
sufficiency of the reasoning given by the district court for his
sentence, and the effective assistance of his counsel. We
affirm.
I.
Hargrove first argues that the district court erred in
failing to establish a factual basis, in particular with regard
to whether Hargrove and the buyer of the firearm were convicted
felons. 1 Because Hargrove did not move in the district court to
withdraw his guilty plea, our review is for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To
establish plain error, Hargrove “must show: (1) an error was
made; (2) the error is plain; and (3) the error affects
1
Hargrove raises these claims as two separate issues on
appeal: (1) whether the factual basis was established and
(2) whether the court established sufficient facts regarding the
felon status of Hargrove and the buyer to sustain a conviction.
Specifically, on the second issue, Hargrove asserts that the
lack of a factual basis makes it impossible to determine whether
the convictions at issue complied with United States v. Simmons,
649 F.3d 237 (4th Cir. 2011).
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substantial rights.” United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). “The decision to correct the error lies
within our discretion, and we exercise that discretion only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted).
Here, even assuming that there was an insufficient
factual basis for Hargrove’s plea constituting plain error, we
conclude that Hargrove still fails to establish plain error
because he has not shown that the error affected his substantial
rights. In the guilty plea context, a defendant meets this
burden by showing that, but for the error, he would not have
entered his guilty plea. Id. Hargrove, however, does not
suggest that he would not have pled guilty but for the district
court’s error. 2 Moreover, Hargrove does not assert that the
Government could not provide a factual basis for each element
and fails to provide any evidence or argument that a factual
basis did not exist. 3 Because Hargrove does not show that his
2
In fact, even on appeal, Hargrove does not seek to stand
trial. Instead, he requests that he be allowed to replead and
be resentenced.
3
While citing Simmons, Hargrove makes no attempt to show
that his convictions are not felonies, that the buyer was not a
felon, or that any of the other elements are unsupported by
facts.
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substantial rights have been affected, he fails to show plain
error.
II.
Hargrove avers that his 210-month sentence was above
the advisory Guidelines range and that the court did not provide
sufficient reasoning for the departure. Hargrove’s Guidelines
range was 120 months; however, absent the 120-month statutory
maximum applicable to both counts, the Guidelines range would
have been 168 to 210 months. Thus, the district court imposed
consecutive sentences totaling the 210-month Guideline sentence
determined to be appropriate: 120 months on the sales charge and
90 months on the possession charge. 4
This methodology is not only permitted but required by
the Guidelines. If the total punishment calculated by the
Guidelines exceeds the highest statutory maximum, the district
court “shall” impose consecutive terms of imprisonment to the
extent necessary to achieve the total punishment. U.S.
Sentencing Guidelines Manual § 5G1.2(d) (2011). Moreover, the
district court is not prevented from stacking sentences when the
counts, as here, have been grouped. See United States v. Chase,
4
Hargrove avers that he received a 220-month sentence and,
therefore, was above the Guidelines range even if the
consecutive sentences were appropriate. However, Hargrove’s
allegations seems to be based on an arithmetic error.
4
296 F.3d 247, 250-51 (4th Cir. 2002). Accordingly, the district
court did not err in imposing consecutive sentences, and
Hargrove’s total sentence, which was within the Guidelines
range, is presumptively reasonable on appeal. Rita v. United
States, 551 U.S. 338, 347 (2007).
Turning to Hargrove’s assertions that the district
court did not provide sufficient reasoning for the chosen
sentence, we conclude that Hargrove is mistaken. A district
court “must make an individualized assessment” and “must apply
the relevant [18 U.S.C.] § 3553(a) [(2006)] factors to the
specific circumstances of the case.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009). However, when a
within-Guidelines sentence is imposed, the “individualized
assessment need not be elaborate or lengthy,” id. at 330,
“because guidelines sentences themselves are in many ways
tailored to the individual and reflect approximately two decades
of close attention to federal sentencing policy,” United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal
quotation marks omitted).
At sentencing in the instant case, the district court
heard argument from both parties and specifically noted
Hargrove’s lengthy, serious, and violent criminal background.
The court recognized that Hargrove’s repeated assaultive
behavior coupled with his propensity to carry firearms “creates
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a dangerous environment for any community in which Mr. Hargrove
will be living.” The court also noted that previous sanctions
had failed to deter Hargrove. The court adopted the findings in
the presentence report and explicitly stated that it had
considered those findings as well as the § 3553(a) factors.
While the court may have been uncertain as to whether the
imposed sentence was technically considered a departure or a
within-Guidelines sentence, the court provided sufficient
reasoning to support either and clearly reached a considered
decision that 210 months was the appropriate sentence. Thus, we
find that Hargrove’s sentence was both within the Guidelines
range and reasonable.
III.
Finally, Hargrove claims that his attorney was
ineffective during plea negotiations, at his plea hearing, and
at sentencing. However, claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
clearly demonstrates ineffectiveness. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well
settled that a claim of ineffective assistance should be raised
in a 28 U.S.C. § 2255 motion in the district court rather than
on direct appeal, unless the record conclusively shows
ineffective assistance.”) (internal quotation marks omitted).
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Because our review of the record discloses that there is no
conclusive evidence of ineffective assistance, we decline to
consider this claim at this time.
Based on the foregoing, we affirm Hargrove’s
convictions and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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